Monday, February 05, 2007

According to an article on the Edmonton Sun News website, a Calgary physician and anti-smoking advocate is calling for lawsuits by children against their parents for exposure to secondhand smoke. His call comes in response to a proposal being considered in Ontario, being pushed by the Ontario Medical Association, to ban smoking in cars with children present. The physician expressed reservations about whether this measure would be sufficient to protect children from what he termed a form of child abuse.

According to the article: "Children should be able to sue their parents for exposing them to harmful second-hand cigarette smoke, an Alberta doctor says on the heels of a Canada-wide call to ban smoking in cars. Dr. Larry Bryan said a puffing ban in cars or homes would be very difficult to enforce – but that the message would come across loud and clear if smokers were held legally responsible for their actions through exposure-related lawsuits."

"'I suppose, what ultimately should be done is a childhood victim of second-hand smoke should legally sue the smoker in the home,' Bryan, a former president of Calgary’s Foothills hospital, said Saturday. 'A strong legal case could be made because of the health harm and evidence that that occurs now.'"

"Bryan worked on the 2002 Mazankowski report’s smoking recommendations. The report, by former deputy prime minister Don Mazankowski, examined the future of health care in Alberta. Bryan also said what a person does on their own is their business, but children and other non-smokers become 'unwilling victims' when people light up in front of them. 'There’s no question it’s a severe health hazard,' said Bryan. 'It’s low-grade childhood abuse.'"

Dr. Bryan apparently is the author of a position paper that makes a number of recommendations regarding anti-smoking policies in Canada, including raising cigarette taxes, regulating cigarette advertising, restricting tobacco sales to minors, promoting and providing pharmacologic therapy for smoking cessation, and enacting smoke-free laws.

The Rest of the Story

I can just see it now. A disgruntled teenager, arguing with his mom about whether he can take the car to go out to a drinking party with his friends, tells her: "Either you let me drive to the party, or else I'll sue you for all that secondhand smoke you exposed me to."

It's a ridiculous idea, but it certainly provides great fodder for humor on an otherwise serious tobacco policy blog.

"Dad, I need 100 bucks. ....... I know you gave me $1000 to cover my expenses at college, but I need a little more. ...... OK, dad, let me lay it on the line. Either you give me the 100 bucks, or I'm filing a lawsuit against you tomorrow for exposing me to secondhand smoke. Pay me 100 now, or 10,000 later."

It hardly seems necessary to dissect this absurd proposal to expose its flaws. But let's start with just one: the physician suggests that children should be able to sue their parents not for harm done by secondhand smoke, but merely for "exposing them" to secondhand smoke.

This would treat secondhand smoke exposure in a way completely different from most any other health or safety hazard. Normally, in order to have a valid negligence tort, one has to show that the alleged breach of duty caused harm. Breaching a duty is not sufficient.

If I fail to shovel my sidewalk to remove the ice (which, I confess, I failed to do this morning), I cannot be sued by a neighbor for merely presenting a risk of him or her slipping on the ice. If they do slip on the ice and there is no damage done, there is still no valid claim against me. It is only if they slip and suffer damage that is caused by my breach of duty that a valid claim exists.

Without even delving into the question of whether exposing a child to a somewhat increased risk of a health condition represents a breach of duty, or whether a child can hold their own parent liable for such a breach it existed, the most obvious difficulty is in showing that any harm done was due to the secondhand smoke exposure. Even in the case of an upper respiratory tract or middle ear infection, the two most common conditions caused by secondhand smoke exposure in childhood, it would be exceedingly difficult, if not impossible, to show that the infection would not have occurred had it not been for the exposure. So even if there is harm, one could almost never show that the breach caused the harm.

But that's not what the physician seems to have in mind anyway. He appears to be arguing that a child should be able to sue a parent even when there isn't any harm done, or alternatively, that exposure itself represents harm. However, there is no scientific evidence to support the latter contention (unless you actually believe the Surgeon General's claim that brief exposure to secondhand smoke eventually leads to heart disease and cancer).

The physician goes so far as calling smoking around one's child a form of child abuse, again exposing either a lack of appropriate differentiation between risk and harm, or a false belief - a la the Surgeon General - that secondand smoke exposure in childhood invariably leads to disease.

The ultimate irony is that this proposal is being advanced to address the problem that car and home smoking bans are unenforceable. But how easy and feasible would it be to enforce a law that allows children to sue their parents for exposing them to secondhand smoke? How much court time would we want to tie up with angry, disgruntled teenagers trying to get back at their parents?

Moreover, with this reasoning, kids should also be allowed to sue their parents for feeding them high-fat foods, taking them out frequently to Burger King and McDonalds, failing to make them exercise adequately, and allowing them to watch too much television or play too many video games.

The one "bright" spot in the story is that an anti-smoking group - Action on Smoking and Health (Canada) actually spoke out in opposition to the idea of passing a statute to make exposure to secondhand smoke a recognized harm for which children could sue or parents could be charged with abuse. The reason? Because, at least as portrayed in the article, "current child protection laws could be used to prevent parents from smoking in homes and vehicles, around children."

In other words, ASH Canada apparently already believes that smoking in homes and cars is a form of child abuse. It appears to differ from the physician only in that it doesn't feel any new statutes are necessary to prosecute parents for child abuse if they expose their kids to secondhand smoke.

I doubt that any anti-smoking group in the United States will be willing to speak out against this proposal - for any reason. If you want a rational perspective on this issue, you'll just have to turn to Gary Nolan of The Smokers' Club, whose New York Timesop-ed yesterday (which follows mine by one week), cogently explains why legislating and enforcing (with police time and effort) the elimination of health risks to which parents may expose their children which only cause definite harm in rare situations is not a sound idea:

"The reality is that just as a prudent parent would not feed a child allergic to peanuts a peanut butter sandwich, a smoking parent would not smoke around an asthmatic child. Proponents of anti-smoking laws argue that we are obligated to protect asthmatic children from parents who lack the common sense not to smoke around them."

"But is the appropriate response to issue a ticket to every smoking driver who appears to have a minor child in his or her car? After all, police officers aren’t stationed at grocery stores citing parents for buying peanut butter if they have a minor with them, on the chance that the child might be allergic to peanuts. Nor are parents stopped from entering a candy store because they might have a diabetic child."

Come to think of it, my parents smoked around me when I was a kid. Perhaps I should be supporting Dr. Bryan's proposal. I just might be able to swindle some money out of my dad - using the threat of a lawsuit. Pay me a little now, or a lot later.

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About Me

Dr. Siegel is a Professor in the Department of Community Health Sciences, Boston University School of Public Health. He has 32 years of experience in the field of tobacco control. He previously spent two years working at the Office on Smoking and Health at CDC, where he conducted research on secondhand smoke and cigarette advertising. He has published nearly 70 papers related to tobacco. He testified in the landmark Engle lawsuit against the tobacco companies, which resulted in an unprecedented $145 billion verdict against the industry. He teaches social and behavioral sciences, mass communication and public health, and public health advocacy in the Masters of Public Health program.